May 2017 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Wednesday, May 31st, 2017

ALJ Kilgannon Reversed

You know that the decision of an administrative law judge (“ALJ”) is poor when the Social Security Administration (“SSA”) refuses to defend it. I represent a claimant whose social security disability (“SSD”) application was denied by ALJ Patrick Kilgannon. I appealed the denial to federal court, and today, U.S. District Court Judge Arthur Spatt reversed ALJ Kilgannon’s decision. (see Staib v. Colvin).

Judge Spatt stated that this was “a unique case” because even the SSA argued that the ALJ’s decision could not be defended. ALJ Kilgannon stated he would admit evidence the claimant submitted, but failed to review and admit them. ALJ Kilgannon failed to develop the record by rejecting the claimant’s onset date for lack of treatment records while never seeking to obtain them or indicating they were relevant. The Appeals Council also failed to consider evidence the claimant submitted after the hearing.

Discussing ALJ Kilgannon’s decision, Judge Spatt explained that, “the Court cannot engage in any meaningful analysis of whether he correctly applied the treating physician rule, whether his decision is supported by substantial evidence, or whether he properly weighed the Plaintiff’s credibility.” ALJ Kilgannon’s decision “was so deficient and flawed” that Judge Spatt ruled it denied the claimant a full and fair hearing. Therefore, Judge Spatt did not even feel the need to address the claimant’s substantive arguments.

Sunday, May 28th, 2017

Hereditary Angioedema

Hereditary Angioedema (“HAE”) is a rare and potentially life threatening medical condition, which causes swelling in almost any body part, external or internal. The swelling occurs unpredictably, but can be triggered by repetitive motion, or even just being bumped. The swelling and pain can completely preclude use of the affected body part, e.g., hands, feet, or can result in death if the airways or digestive system swell.

From a claimant’s persepective, the problem is explaining why HAE renders them disabled from working. A Social Security medical expert testified that my 43 year old client was disabled, but could stand/walk 6 hours out of 8, and could lift 10 lbs. The administrative law judge (“ALJ”) wanted a supplemental hearing, presumably for a vocational expert, until I cross examined the medical expert (“ME”).

I was able to get the ME to agree that the claimant would miss at least 3-4 days a month because of the HAE. The ME also agreed that while the claimant might be able to lift 10 lbs and stand for 6 hours, it was not advisable for him to do so given his HAE. Following the ME’s conclusions, the ALJ stated that a supplemental hearing would not be necessary, and she would issue a decision shortly. Given the ME’s testimony, I anticipate a fully favorable decision.

The ALJ also wanted a supplemental hearing so the ME could consider adversarial evidence. Because of my client’s HAE, he is homeless, which is why I vehemently opposed a supplemental hearing. Besides needing SSD to live, the client should also be entitled to receive Medicare, which is critical to his receiving proper treatment.

Friday, May 19th, 2017

IMA CE

The State agency continues to send letters insisting that Social security Disability (“SSD”) claimants go to consultative examinations (“CEs”) by Industrial Medicine Associates (“IMA”). I represent a 59 year old former security guard with breast cancer and orthopedic problems whose SSD application was approved today, even though she did not go to the IMA CE.

The State agency was unconcerned about the cancer because it was Stage I. Nonetheless, the claimant had three separate orthopedic specialists who treated her bilateral hand, lumbar spine, and knee problems. Their treatment records and supporting summary reports with functional assessment were obtained quickly. The same State agency that said it was necessary for the claimant to attend a CE, determined that the claimant was disabled from work, despite the fact that she did not attend the IMA CE.

Ongoing communications with the State agency representative assigned to the claim helped expedite the case. We were able to pin down exactly what the State agency claimed would be needed from the CE, and had the claimant’s doctors’ provide it. Getting the information made the representative’s job easier as we did the job for her. Avoiding the IMA CE with its inevitable conclusion that the claimant could work made the extra effort worth it.

Wednesday, May 17th, 2017

RSD Journal

The Social Security Administration (“SSA”) has a special rule that covers Reflex Sympathetic Dystrophy (“RSD”) claims.. In a previous blog, I discussed how Social Security Disability claimants with RSD can use that rule to help win their case by submitting third party information. That rule also discusses the value of a claimant’s journal.

Typical RSD symptomsinclude severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling, and extreme sensitivity to touch. Evidence supporting the severity of those symptoms usually comes from the medical records, and is corroborated by third party information, such as hearing witnesses or affidavits. However, the RSD rule specifically adds that a claimant’s own records can establish the functional impact of RSD.

Most of the time, the SSA disregards a journal or diary as either redundant of testimony or self-serving. However, the RSD specifies that such evidence would be documentary validation of a claimant’s subjective allegations. Therefore, the SSA’s failure to credit that evidence would be error, and provides the claimant with additional evidence that is consistent with the claims.

I just had another RSD claimant’s application approved. In the past I have been told that I submit cumulative evidence. The SSA has effectively replaced the test of a claimant’s credibility with a test of the consistency of the evidence. It is more important now than ever to submit as much evidence from multiple sources, including evidence that is not from physicians, to show that any adverse evidence, usually limited to SSA doctors, is the inconsistent evidence.

Monday, May 1st, 2017

Psychotherapy Treatment Records

The Social Security Administration (the “SSA”) uses the HIPPA definition for “psychotherapy notes,” which are also known as session or process notes. Mental health professionals document their conversations of counseling sessions with notes, and according to the SSA, it “recognizes the sensitivity and extra legal protections that concern psychotherapy notes and does not need the notes.” The SSA excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date, from psychotherapy notes.

Most mental health providers have one set of treatment records, which leaves two choices. First, the records that would be considered psychotherapy notes can be blacked out. Alternatively, the mental health care provider can prepare a report that details the critical current and longitudinal aspects of the patient’s treatment and their functional status. Most Social Security Disability attorneys provide mental medical source statements that provide the information consistent with the second option. Nonetheless, the SSA always insists on having the actual treatment records.

The problem with supplying the psychotherapy notes is that the SSA cherry picks comments out of context to argue that the claimant’s mental impairments are insufficiently severe to be disabling. When the SSA demands my client’s psychotherapy notes, I offer to provide them if they confirm in writing that the information from their website is incorrect. I also offer to supply a report providing whatever details regarding the critical current and longitudinal aspects of the claimant’s treatment and functional status that the SSA claims was omitted form the mental medical source statement.

I represent a claimant with anxiety and depression whose application was approved today less than two months after it was submitted. The SSA insisted on a consultative examination (“CE”) for my client because I only submitted mental medical source statements and narrative reports. After I submitted a letter discussing the above, the SSA withdrew the CE demand, and approved the application.